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Balancing act

Richard Rosser on ensuring the Investigatory Powers Bill is fit for purpose

The Investigatory Powers Bill, which gets its Lords second reading on Monday, seeks to address an issue that in theory is very simple and straightforward: the appropriate balance between individual privacy and collective security in our digital age. In reality however, it is far more complex given the very different views that exist on where such balance lies.

Far more complex as well in light of last week's vote to leave the European Union. Co-operation with our European partners on security and intelligence issues, and through the European Arrest Warrant, in the fight against terrorism and major crime has been a vital part of our armoury. As the potential consequences of withdrawal on the key provisions in this Bill were not considered by the Commons, this is something we will raise in the Lords.

The Bill has been the subject of extensive pre-legislative scrutiny – including by a Joint Committee of both Houses of Parliament, chaired by my Labour Lords colleague Paul Murphy. It is intended to replace the Data Retention and Investigatory Powers Act 2014, which contains a sunset clause requiring new legislation to be passed by the end of this year.

Safety and security matter. A point brought home to us all too painfully by the brutal murder in broad daylight of Jo Cox. Meanwhile, our current national threat level for terrorism is severe, and we have seen major attacks in the past year in Paris and Brussels. The Bill also covers other serious crimes, including people trafficking, sexual abuse, stalking and harassment.

The security and intelligence services, GCHQ, the National Crime Agency and the police must have the powers to deal with these threats. Not least, as we live in an age when access to technological advances mean that those involved in terrorism and criminality have a reach and scale that has not existed before.

Human rights matter too. Whether the right to privacy, the right to be left alone, the right to have private data protected or the right to redress. Another of my Labour Lords colleagues Doreen Lawrence and her family were put under surveillance by the Metropolitan Police for no justification at all.

Of course, human rights and safety and security are not mutually exclusive

Labour supported the Bill at Third Reading in the House of Commons for two reasons. First, the significant amendments that were made to meet our ‘red lines’. Secondly, the verbal undertakings given by ministers - there for all to read in Hansard. It is now up to the government to deliver on the latter, including the commitment to introduce a threshold for access to internet connection records so that powers cannot be used in investigating minor crimes. Along with commitments on the protection of journalists and their sources, and legal professional privilege.

But what of the changes to the Bill achieved already?

On the powers enabling information to be extracted in bulk form, the government accepted our demand that there should be an independent investigation into the operational case. Such powers are for the most part already available but not on a statutory footing with safeguards. An investigation will be carried out therefore, by the QC David Anderson – the Independent Reviewer of Terrorism Legislation – to consider whether the same result could be achieved through alternative means. The conclusions will be made before Peers reach the relevant clauses in the Bill.

We also successfully pressed for an overarching privacy clause, against which the use of the exceptional powers in the legislation would have to be justified. And secured a provision that makes clear that legitimate trade union activities are not sufficient reason for powers under the Bill to be exercised.

Another achievement related to judicial oversight of decisions to approve warrants for the exercise of powers under the Bill by the Home Secretary. A judicial commissioner will now have to consider necessity and proportionality then balance that against the overarching privacy clause. Our party colleagues in the Commons also secured protection for whistle-blowers when providing information to the Investigatory Powers Commissioner; and the Bill now also provides greater protection over access to medical records.

All of this is an indication that thanks to Labour’s persistence, determination and constructive work there are now much stronger safeguards in this Bill protecting people’s privacy and human rights. We are now looking however, to make further progress in the Lords starting with holding the government to those undertakings given in the Commons. And to answer urgently our concerns about what Brexit may mean for this particular legislation.

Lord Richard Rosser is Shadow Home Office Minister in the House of Lords